Barely Legal

When Dr. Greta Mueller* moved to the Twin Cities a few years ago, she assumed that abortions would be among the myriad services she would provide. A talented OB-GYN trained on the East Coast, Mueller is adept at the relatively uncomplicated suction curettage procedure used for most first-trimester abortions as well as the more difficult dilation and evacuation (D&E) method used to terminate many second-trimester pregnancies. "It was an expected part of our training," she says over coffee at a Minneapolis café. "To not learn how to do them was an effort [that only] a handful of people [made]."

Not long after Mueller set up practice at a local clinic, a patient's baby was diagnosed with spina bifida--a birth defect in which the neural tube fails to close during fetal development, leaving a portion of the spinal cord disconnected or outside of the body. Mueller explained to the patient that she had a choice: She could go to a medical center that repairs spina bifida in utero, terminate the pregnancy, or wait until the baby was born and deal with the complications then. When the woman decided to terminate, Mueller promised to perform the abortion herself.

Mueller first tried to arrange for the procedure at a Twin Cities hospital, which had the necessary surgical equipment (the patient was 17 weeks pregnant), but was told that she would first have to convince the hospital's "abortion committee." (According to Tim Stanley, executive director of NARAL Pro-Choice Minnesota, Regions Hospital in St. Paul is the only facility in the state to readily provide abortions. The other 136 Minnesota hospitals require that a physician negotiate a screening committee. Depending on committee members' beliefs and fears, policies vary widely.) "I had no idea that I would have to get permission [for a legal procedure]," Mueller recalls.

Before she even contacted the committee, Mueller learned that the hospital only granted permission for abortions of, in the language of the OB world, "lethal anomalies," which fetuses with spina bifida are not. Mueller sent her patient to a perinatologist to confirm the diagnosis. A counselor who worked alongside the perinatologist suggested to the now-distraught pregnant woman that she have an induction-type termination where she would prematurely deliver the baby. The patient agreed and Mueller tried to find a cooperative hospital. When none would grant her permission, Mueller called the counselor and demanded to know why she'd offered up a procedure that was next to impossible to arrange. The counselor suggested that the patient go to Kansas.

Recounting the story, Mueller's jaw drops. "I was furious," she says. Finally, she referred the patient to Meadowbrook Women's Clinic, one of seven remaining abortion clinics in Minnesota, for a D & E. "I felt terrible for this patient, because I told her I could take care of her and then I had to hand her off to a stranger," says Mueller. "That was my rude awakening to Minnesota."

The April 25 march on Washington notwithstanding, the pro-life movement has been monumentally successful in scaring pro-choice health care providers across the country, increasingly few of whom are willing to risk their careers and personal safety over a procedure that comprises only a tiny fraction of any OB-GYN's practice. This state of affairs is the result of a piecemeal, below the radar, and little understood campaign by pro-lifers to limit a woman's practical options for abortion. Their tactics combine legislative battles for ever more restrictive legislation with ceaseless grassroots intimidation: loud, menacing protests at abortion clinics, the leafleting of medical schools--including the University of Minnesota's--and the active support of pro-life doctors who advance their beliefs in medical settings, including patient consultations.

The sense of fear is so palpable that the majority of doctors who provide abortions--even two or three per year--and agreed speak for this story insisted that their names and other identifying characteristics be changed and that the names of the clinics and hospitals where they work be omitted. When discussing the rare fetal anomalies that these doctors had terminated, it was not uncommon for them to ask that the details be kept out of the story for fear that they would somehow be linked to the cases and tracked down.

In Minnesota, the legislative successes of Minnesota Citizens Concerned for Life (MCCL) have been spearheaded by State Senator Michelle Fischbach, a Republican from Paynesville who is married to Scott Fischbach, MCCL's current director. NARAL's Tim Stanley further points out that 70 percent of state representatives and 60 percent of state senators are antichoice and vote accordingly. Largely due to the work of Fischbach and her supporters, Minnesota has fallen from a 1996 NARAL ranking of "B+" to a current grade of "D" and a 28th-place ranking in a state-by-state survey of abortion rights. (But that "D" practically makes Minnesota the model student of the upper Midwest: Wisconsin, North Dakota, South Dakota, and Michigan all get "F"s from NARAL--Iowa received a "C-".)

Not only does Minnesota have one of the most restrictive abortion laws in the country pertaining to minors--both legal guardians have to be notified; if the parents don't support the termination, the minor must appear before a judge--but only a physician can legally provide an abortion, even a miscarriage induced by the so-called abortion pill, RU-486. While a handful of states, including Connecticut and New York, allow nurse practitioners and nurse midwives to dispense it with relative ease, Minnesota law requires that a doctor personally put the pill in the patient's hand and watch her swallow it. And, in fact, after RU-486 became legal in 2000, according to Stanley, most local hospitals and clinics declined to provide the pill at all, for fear of being targeted by antichoice activists.

The state abets these activists by constructing meticulous paper trails for them: Abortion is the only legal surgical procedure that must be reported to the Minnesota Department of Health. The requisite form--entitled, "Report of Induced Abortion"--is a disconcerting document. It requires the physician's reporting code and facility reporting code, along with the physician's medical specialty, the setting in which the procedure was performed, the patient's city of residence, age, race, education, estimated gestation, number of previous abortions or live births, contraceptive use at time of conception, type of procedure, complications, method of disposal for fetal remains, type of payment, type of health coverage, and, last but not least, "specific reason for the abortion."

The requirement is the result of a state law passed in 1998, at the height of debate over the national Partial-Birth Abortion Ban Act, which President Bush signed into law last year. Because Minnesota found itself lacking hard data about the annual number of abortions by type, MCCL pushed the requirements through, hoping they would provide the smoking gun data necessary to ban partial-birth abortions.

Kimberlee Ward, associate legal director for NARAL Pro-choice America, believes that a very real consequence of gathering and making available this type of data is to allow pro-life activists to target judges who rule in favor of minors seeking terminations. The law also serves to warn abortion doctors that they are being watched at all times. One OB-GYN, who spoke on the condition of anonymity, said the intimidation factor is very high. On the few occasions he has performed abortions, he has declined to fill out the mandatory form. "I'm not going to report something to the state that could jeopardize my life," he says. "If they want to provide security for me, that's fine." Another physician explained that some doctors skirt the reporting requirement by claiming they are handling miscarriages rather than abortions. Ironically, for these physicians, breaking the law causes less anxiety than admitting to performing a procedure that is legal.

"Each restriction on its own can have a devastating effect on a woman's right to choose," says Ward. "But when you put these limitations together, the hurdles for women and their pro-choice doctors become almost insurmountable." According to figures from a 2003 Minnesota Department of Health report, a mere 20 doctors provided 97 percent of the state's 14,833 reported abortions in 2002. Even more surprising, a smaller, stalwart group of eight doctors provided 74 percent of the total.

Stan Davis sits in the family room of his suburban Twin Cities house, just beyond piles of plywood and scattered home improvement tools. A graduate of the University of Minnesota Medical School, Davis completed his residency at the University of California, San Diego. Like Mueller, he was trained to do both first- and second-trimester abortions, which came in handy since the operation is all but banned just across the border in Mexico.

Abortion should be part of routine obstetrics training, says Davis, and not just because he's ardently pro-choice. "Say someone is at 18 weeks and starting to miscarry. At 18 weeks, that's getting to be a bigger uterus, and if she's bleeding heavily, you need to know how to evacuate [it]." Davis continues, "[Pregnant] women can get infected and bleed and you have to take care of them. If you don't do it right, you are going to hurt them." Because the majority of local OB-GYNs were taught at the U of M medical school--where, until very recently, a resident had to specially request any abortion training at all--they have practically no experience with the operation. Davis is regularly asked to stand by in cases of fetal death, where a uterus needs to be evacuated.

In March 2003, before the Minnesota House Health and Human Services Committee and a state senate panel, Davis made a strong case against the Woman's Right to Know Act, which took effect on July 1, 2003. The law--another victory for MCCL--requires that all Minnesota physicians who either perform abortions or refer their patients to abortion clinics inform those patients at least 24 hours before the procedure not only about the attending medical risks, but also about adoption possibilities and child support options. Doctors are also required to dispense materials that detail anatomical and physiological characteristics of unborn children and explain details of fetal pain. Until recently, the materials--generated by the state health department--inaccurately linked breast cancer to abortion.

"The 24-hour wait is a bad idea because I don't think anything should interfere with the patient-physician relationship," says Davis. "Once you get behind the closed doors of a clinic, I don't want the government intruding on that environment. And I don't think other people want that either." What really disturbs him about Right to Know, however, is that it pegs women as stupid or, more cynically, easily cowed. "The state telling women that you have to wait 24 hours because you're not smart enough to figure this out for yourself is just plain wrong," he says. "You don't have to wait 24 hours to get a vasectomy."

In cases where couples have conceived a child only to find that something has gone horribly wrong, the Right to Know law only heaps on added pain. "Let's say you have a baby who is anencephalic, meaning that it has no skull," Davis says. "You diagnose it. The perinatologist diagnoses it. The baby's not going to live. You have to tell the parents that they have to wait 24 hours to abort and by the way, 'Here's a website you can go to to learn about fetal development and adoption.'" Davis laughs at the absurdity.

When asked whether he currently performs abortions, Davis shakes his head no. "It's not because of the social stigma," he says. "I think I could even handle it with my family and friends. The reason I don't do abortions is because I don't want to be shot. I don't know how else to put it." After a few minutes of discussing something else, Davis interrupts himself. "Bernard Slepian," he blurts out, referring to the upstate New York obstetrician who was murdered in 1998. "He was in his kitchen and the guy was in his backyard. His kids and wife were there and came into his kitchen to see him dying." Davis gestures toward the room's large picture windows, showcasing the first buds of spring along the steep backyards of his neighbors' homes. "You know, there are several perches out there."

Besides all the usual duties of an obgyn--yearly exams, birthing babies--Dr. Peter Chang* has performed between 10 and 15 abortions over the past few years. "My feeling is someone doesn't need to give me a reason," he says. But the pressure is getting to Chang, and now that he has children of his own, he is questioning his resolve to continue providing this service. Fear for his family is the number one reason, but a hostile work climate hasn't made his job any easier.

While the partners at Chang's clinic support his decision to provide abortions, a longstanding state law that allows any individual or entity to refuse to participate in the procedure has made staffing extremely difficult. Once, a nurse who initially believed she would be assisting in a miscarriage walked out on the procedure. Another time, a recovery room nurse refused to care for a patient who had just terminated a pregnancy. Lucky for Chang, an orthopedic nurse stepped in to help. "The patient didn't know," he says. "But [the fact that] the nurse had no gynecological experience was quite obvious."

Chang's most frustrating case to date involved a woman whose amniocentesis tested positive for Down's syndrome. The patient already had one child who was born at 26 weeks and required special medical care on limited finances. When the patient and her husband decided to terminate, Chang went about trying to set up an inducement to labor. It took a week and a half to find staff willing to work with Chang. By the time the nursing staff was in place, Chang's patient was almost 22 weeks pregnant, which meant she was both perilously close to the legal cutoff for abortions and at increasing risk of complications.

At the induction, an older nurse who'd volunteered to assist approached Chang. "I heard you needed me," she told him. "You know, there aren't many of us left." Perhaps the pro-choice/pro-life divide is, in Chang's words, a "generational thing." "People of my generation don't know what it was like before Roe," he says. "Maybe this new conservatism comes from taking our rights for granted."

One doctor who crosses this generational divide is Dr. Carrie Terrell, a Twin Cities OB-GYN who works as an associate adjunct professor in the OB-GYN department at the U of M, and as an abortion provider at a local facility. Because she attended the U of M as a student--she completed her residency in 1999--Terrell was forced to learn about abortion procedures on her own time, all the while risking marginalization and poor recommendations from pro-life advisors. Since 2001, abortion training is part of standard U of M curriculum. The new program has received high praise and comes at a critical time since many of the doctors who work at abortion clinics are nearing or past retirement age.

Terrell says residents who graduate these days with the intention of performing terminations and, like her, manage to wedge an extra four hours into an already 40-to-60-hour work week so that they can moonlight at an abortion clinic, will face enormous obstacles, even beyond peer pressure and bad legislation. For example, many private practices and HMOs won't allow doctors to work outside their systems (all abortion clinics, with the exception of St. Paul's Regions Hospital, exist outside these systems). Add to that the additional $6,000 to $9,500 per year in malpractice insurance charged to abortion providers, and many doctors--even those who can withstand the fear factor--decide that it just isn't worth the effort.

Still, Terrell stands tough. "I know I could get shot," she says. "But I feel that I'm qualified and licensed to perform a safe and easy procedure or write a prescription. How in good conscience could I not do it?"